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Some Challenges in the Reintegration of Ex- Offendersfor Appointment As

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Some Challenges in the Reintegration of Ex- Offendersfor Appointment As 1 Some Challenges in the Reintegration of Ex- 2 Offendersfor Appointment as Directors in 3 Botswana 4 5 6 7 8 109 11 . 12 ABSTRACT 13 The aim of this paper is to interrogate key legal perspectives of reintegration of ex- offenders into society with specific reference to their appointment as directors of private enterprises in Botswana. The paper contends that re-integration of ex- offenders is a continuation of their rehabilitation that should start during their incarceration. The paper argues that the Companies Act Chapter 42:01, the principal statutory law governing private enterprises in Botswana, generally fetters the rehabilitation and reintegration of offenders by placing unlimited discretion on the courts in the determination of whether ex-offenders should become directors of companies. Such wide and unrestrained powers of the courts may violate the right of ex-offenders to employment and managing their businesses. The paper adopts a qualitative research design with interpretivist paradigm because of the critical and hermeneutical approach when one is interpreting and analyzing diverse legal instruments. The International Covenant on Civil and Political Rights is considered so as appropriately locate the current discourse. With a view to assessing the magnitude of the treatment of ex-offenders in the private sector for director positions, the paper examines the law on the qualifications for appointment as a director in selected public sector boards. The finding is that whereas the Companies Act Chapter 42:01 leaves the fate of an ex-offender in the hands of the judiciary, that is not the case in the appointment of directors in State-Owned Enterprises (SOEs) that are established by legislation. The paper therefore recommends legal reform for the Companies Act Chapter 42:01 to adopt an approach that clearly re- integrates ex-offenders without any court process. For a proper appreciation of the approach found in the Companies Act Chapter 42:01, the paper examines South Africa’s Companies Act 71 of 2008. The paper finds that there is need for legal reform in Botswana so that the fate of ex-offenders regarding managing their own companies and serving in other companies is not left to the courts without any statutory safeguards. 14 15 Keywords: Ex-Offenders; Rehabilitation; Re-integration; Human Rights; Legislation; 16 Recidivism 17 18 19 20 1. INTRODUCTION 21 22 Upon release from prison, ex-offenders or persons who were found guilty by a court, 23 come across many challenges in their effort to be integrated back into society 24 [1].This paper examines one of the main legal challenges faced by ex-offenders who 25 intend to occupy fiduciary positions in Botswana’s commercial sector. The legal 26 challenges are not only found in a developing country like Botswana. Rehabilitation 27 of ex-offenders which includes their reintegration is a process that goes beyond 28 measures put in place by prison authorities during the confinement of an individual 29 for wrong doing [1]. In addition, it is important to view the subject of reintegration of 30 the ex-offender from a human rights perspective. When reintegration of an offender 31 is anchored on human rights as argued in this paper, the right of the public to their 32 own safety is not threated but may in fact be reduced [2]. The human rights 33 approach for reintegration of offenders. The Quaker Council for European Affairs 34 has observed that reintegrating ex-offenders into society shows respect of the 35 human rights and dignity of the ex-offender [3]. 36 37 This paper submits that there is need for a comprehensive legal and policy 38 awakening on reintegration of offenders in Botswana by not unreasonably restricting 39 the ex-offenders from appointment as fiduciaries of State and private enterprises. 40 The State has the obligation of embracing the reintegration of ex-offenders [4]. The 41 initiative for reintegration of the ex-offender by the State is a human right of the ex- 42 offender and the State has an obligation to put in place legislative and policy reform 43 for the re-integration of the ex-offenders into society. By so doing, the State would 44 be mitigating the possibility of recidivism [5]. Any legal barrier for the re-integration 45 of ex-offenders into society is a continuation of punitive rationale of imprisonment, a 46 perspective that is losing currency [5]. 47 48 This paper focuses on the rationale of the reintegration of ex-offenders with specific 49 focus on the legal framework in Botswana in relation to qualification for appointment 50 as a director. The paper argues that past offences of an ex-offender should not 51 unreasonably impede such an individual from occupying or be appointed as a 52 director by placing such a right at the whims of the judiciary. The argument becomes 53 more compelling when one considers that an ex-offender may have skills that are 54 not easily available in a developing economy like Botswana, a shortage that has 55 been described as a ‘scourge’ [6] only for a court to prevent him or her from 56 becoming a director of a company. 57 58 The Companies Act Chapter 42:01 is the legislation that more than any other drives 59 the private sector which includes listed and non-listed companies. In this 60 connection, the paper finds that the Companies Act Chapter 42:01 vests the 61 reintegration of the ex-offender in the hands of the court thereby giving the courts 62 without stating what the courts should take into account in determining whether the 63 ex-offender should be appointed as a director. The weaknesses of such a legal 64 position become clear by a brief examination of South Africa’s Companies Act 71 of 65 2008. For the purpose of this paper and in particular the Companies Act 42:01, ex- 66 offenders include a person who has been removed from an office of trust because of 67 misconduct. The reason is that such persons require to be reintegrated into society 68 in the same way a person found guilty of an offence requires reintegration. In 69 demonstrating the shortcomings of the Companies Act Chapter 42:01 in connection 70 with its position regarding ex-offenders, the paper makes reference to the 71 disqualification for appointment to the board or management committee of a public 72 entity. It is ironical that in the management of public entities, the State does not 73 leave to the courts the reintegration of the offenders. Legislation is clear on the post- 74 conviction duration to be taken into account before the ex-offender is appointed as a 75 director. 76 77 2. METHODOLOGY 78 79 The paper adopts a qualitative research design. Qualitative design is anchored on 80 ‘inductive theorizing’ which because of the arguments and debates involved can 81 fashion a new direction of a particular discourse [7]. Under the wider qualitative or 82 research design, the paper adopts an interpretivism paradigm. Interpretivism has 83 been expressed.as ‘post-positivism’ paradigm [8]. Interpretivism is a suitable 84 paradigm for the legal-socio enquiry in the paper because it encompasses critical 85 theory and hermeneutics which is ‘the art of interpretation’ [9]. Hermeneutics 86 approach shall enable the interpretation of the selected legal instruments in 87 Botswana with more emphasis on the Companies Act, Chapter 42:01. To appreciate 88 the approach of the treatment accorded to ex-offenders by Companies Act Chapter 89 42:01, seven SOEs governing state enterprises are purposively selectedout of about 90 twenty-five SOEs. This represents about twenty-eight percent (28%) of the SOEs in 91 Botswana. The selection is based on the significance and role of the seven SOEs to 92 the State and the economy as a whole. The aim is to compare the perspective on 93 ex-offenders as regards appointment to the boards of such entities. In the textual 94 analysis of the Companies Act Chapter 42:01, a comparative perspective of the 95 position in South Africa is made. 96 97 By embracing an external methodology in which the subject of rehabilitation of ex- 98 offenders is seen beyond Botswana, the approach contributes directly to the 99 globalization and internalization of legal research and practice [10], a position that is 100 different, and a shift, from the traditional method of legal internal or inward-looking 101 analysis to legal research [11]. The inward-looking approach essentially dwells on 102 textual analysis of legal material. Much as the approach is central to legal research, 103 it cannot be a vehicle for a pragmatic approach to legal research in particular its 104 internalization. The need for a different approach to interpretation of legal text 105 becomes more compelling in a multi-disciplinary enquiry as in this paper, that 106 encompasses legislative law and literature on sociological concepts of rehabilitation 107 and recidivism. 108 109 3. RESULTS 110 111 112 3.1 Reintegration of Ex-Offenders: An Overview 113 114 The punishment or retribution of the offender has for a long time been the anchor of 115 the criminal justice system [5]. Retribution is based on the right of the public to be 116 protected from offenders when the justice system punishes the offender [12]. 117 However, rehabilitation of the offender in the course of serving sentence and post- 118 release is now a principal consideration in many countries [5]. Indeed, the 119 international position is that‘the penitentiary system shall comprise treatment of 120 prisoners the essential aim of which shall be their reformation and social 121 rehabilitation’ [13]. Comment [P1]: There is plagiarism.
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